appeal pro se

[Mona Si]

Jurisdiction

Virginia

The summary judgment was granted in the favor of the defense and I am appealing prose because my lawyer committed several malpractices and has a conflict of interest. I will really appreciate if you could answer my questions:

1) The judge in its order said " time to file a notice of appeal enlarged by 30 days' but did not provide an exact date for the notice of appeal. Now i have to figure out what is the last day for notice of appeal. This order was entered on 5 DEC and my original time to file an appeal was expiring on 15 DEC. So does the 30 day 'enlarged' clock start from the date of order (5 DEC) when the extension was granted or from the day when the notice of appeal was expiring (15 DEC) ?

2) Does the notice of appeal include just one form or the brief should be submitted with the notice of appeal?

3) I want to use the transcript ( for court discussion on summary judgment) in preparation of the brief for appeal. Can I order the transcript now and attach it with the brief? or Do i need to order it again within 14 days once I file for notice of appeal?

Thank you,
M

 

[cbg]

It would be much easier to answer your questions if you'd provided some kind of clue what kind of case we were talking about.

 

[PayrollHRGuy]

1) One could assume that an additional 30 days would start on the day the original deadline ends.

2 & 3) Nobody here knows what court you were in or any of the details so we really can't tell you the rules.

 

[flyingron]

Let's first start with what court the judgment was issued in. The appeal varies based on that.

Anyhow normal appeal time is 30 days after entry of judgment unless extension is granted. If there was a 30 day extension that would put you into February.

The notice has a prescribed form but really indicates only procedural stuff (like whether transcripts are required).

Do you have a basis for your appeal? Ineffective counsel doesn't fly in civil cases. You have to show there was some misapplication of the facts in the summary judgment. Note courts at the appellate level in the Commonwealth don't give much leeway to pro se incompetent pleadings. You'd be well advised to find another counsel if you want to have a chance at an appeal.

Transcript procedure depends on the court if it is even available. GDCs don't have transcripts. Circuit courts typically have it available though it may be contracted out, you need to know which court it is and contact their clerk.

 

[Redemptionman]

and going pro se is a tough proposition to begin with.

You are more likely to be listened to if you find another attorney which you like.

 

[zddoodah]

I am appealing prose because my lawyer committed several malpractices and has a conflict of interest.

Neither of those is a valid basis for an appeal.

The judge in its order said " time to file a notice of appeal enlarged by 30 days' but did not provide an exact date for the notice of appeal. Now i have to figure out what is the last day for notice of appeal. This order was entered on 5 DEC and my original time to file an appeal was expiring on 15 DEC.

I've never heard of a 10-day deadline to appeal. In what court was the case filed? Also, while the order may have been entered on December 5, has judgment been entered? If so, when did that happen?

So does the 30 day 'enlarged' clock start from the date of order (5 DEC) when the extension was granted or from the day when the notice of appeal was expiring (15 DEC) ?

The only way for someone to give an intelligent opinion about this is for you to quote the order exactly. That said, even if it's 30 days from December 5, you've got until January 4, so you have a full week. Why wait longer than that?

Does the notice of appeal include just one form or the brief should be submitted with the notice of appeal?

The brief does not get submitted with the notice.

I want to use the transcript ( for court discussion on summary judgment) in preparation of the brief for appeal. Can I order the transcript now and attach it with the brief? or Do i need to order it again within 14 days once I file for notice of appeal?

You need to familiarize yourself with the rules of appeal. In the courts where I've practiced, there is a whole schedule of dates (e.g., reporter's transcript, items from the lower court's file, briefing, etc.) that are triggered by the filing of the notice of appeal. You need to figure all that out because, if you screw something up, your appeal, even if substantively meritorious, could be dismissed on procedural grounds.

 

[adjusterjack]

The summary judgment was granted in the favor of the defense and I am appealing prose

Here are the minimum requirements for filing an appeal in Virginia. Study it carefully. There are references to forms, statutes and codes. Look them up and study them carefully.

Fairfax Circuit Court Civil Appeal Procedures for the Court of Appeals (fairfaxcounty.gov)

Just so you know, your grounds for appeal must be one or more of the following:

A constitutional violation in the trial process.
The judge made a ruling that contradicts the law.
The verdict is not supported by the evidence.

For more help do an online search for Virginia appellate procedure.

You have a lot of studying to do.

As "Z" noted, your appeal can be denied on procedural errors alone.

 

[Mona Si]

Let's first start with what court the judgment was issued in. The appeal varies based on that.

Anyhow normal appeal time is 30 days after entry of judgment unless extension is granted. If there was a 30 day extension that would put you into February.

The notice has a prescribed form but really indicates only procedural stuff (like whether transcripts are required).

Do you have a basis for your appeal? Ineffective counsel doesn't fly in civil cases. You have to show there was some misapplication of the facts in the summary judgment. Note courts at the appellate level in the Commonwealth don't give much leeway to pro se incompetent pleadings. You'd be well advised to find another counsel if you want to have a chance at an appeal.

Transcript procedure depends on the court if it is even available. GDCs don't have transcripts. Circuit courts typically have it available though it may be contracted out, you need to know which court it is and contact their clerk.

Thank you for your response:


I realized from the responses that I should have put more details in the questions. I appreciate all the answers below and your time. I have reframed my questions and added more details to clarify the situation:

The summary judgment was granted in the favor of the defense and I am appealing prose because my lawyer withdrew. It is a civil case on employment retaliation ( I am not appealing for malpractice). I would need to appeal to the United States Court of Appeals for the Fourth Circuit. I will really appreciate if you could answer my questions:

1) The summary judgment for my civil case (retaliation) was granted on 16 NOV in favor of the defense (which means the deadline for notice of appeal would have been 15 DEC). My lawyer filed a motion to withdraw and in the same motion, he asked for the extension of the deadline for notice of appeal. The judge allowed the lawyer to withdraw and also said in its order that " time to file a notice of appeal enlarged by 30 days' but did not provide an exact date for the notice of appeal. Now i have to figure out what is the last day for notice of appeal. This order was on 5 DEC and my original time to file an appeal was expiring on 15 DEC. So the question is whether the 30 day 'enlarged' clock starts from the date of order (5 DEC) when the extension was granted or from the day when the notice of appeal was expiring (15 DEC) ?

I need to figure this out because I need time to write the brief and research.

2) Does the notice of appeal include just one form or the brief should be submitted with the notice of appeal?

3) This is a really important question that I needed to figure out. I want to use the transcript ( for court discussion on summary judgment day) in preparation for the brief for appeal. Can I order the transcript now and attach it with the brief later, after filing the notice of appeal? If I do so, would I need to order it again within 14 days after filing the notice of appeal? The transcript order form asks for the date for notice of appeal. Is it mandatory to put the date of notice of appeal on the transcript order form?

Thank you,
M

 

[flyingron]

OK, well this changes everything. My previous advice was based on the assumption that you were in the Commonwealth of Virginia courts system. You're in Federal court, and as a fine Federal judge down in Florida once says, you need to govern yourself accordingly.

Again most judges are not going to suffer idiotic petitions even from pro se appellants.

Again, there's no guarantee of counsel (competent or otherwise) in civil actions as opposed to what is mandated in criminal actions.

A federal notice of appeal is even more perfunctory than in the commonwealth court. You can find the form online. All you need to do is indicate you wish to appeal. Once you start the process, then you have to get your act together with filing the requisite briefs. Really, this goes beyond what we can do in an internet forum (lawyers or not). YOU NEED TO FIND A NEW ATTORNEY IF YOU WISH TO PREVAIL HERE.

The transcript you order and pay the fees based on how desperate you are to see it. Understand that the courts are not overly fond of people filing appeals without a clue as to what legal grounds they might have. Have you any grounds other than you're unhappy with what happing (not actionable)?

Frankly, you attorney withdrawing probably didn't mean much to a summary judgement. A summary judgement says that even given all the possible determinations of fact in your favor, there isn't a case there that you could have prevailed upon. Why do you think you have a basis to appeal?

 

[adjusterjack]

Mona, I would err on the side of caution and get the notice of appeal filed before Jan 5. Understand that the "notice" of appeal is not the appeal. The appeal itself will be subject to the timeline for the federal appellate procedure.

Here's a guide published by the US Courts.

T:\TS\PAMP2016\AFTERP~1\APPELL~1\APPL2016.XY (uscourts.gov)

The grounds for appeal in federal court should be the same as, or similar to, the grounds required in state court. Here they are again.

A constitutional violation in the trial process.
The judge made a ruling that contradicts the law.
The verdict is not supported by the evidence.

Explain which of those applies to your case and how does it apply.

Frankly, if you cannot articulate that to us, your appeal is unlikely to get off the ground.

 

[zddoodah]

I would need to appeal to the United States Court of Appeals for the Fourth Circuit.

So...your case was filed in the U.S. District Court for the Eastern or Western District of Virginia? If so, the time to file an appeal (unless enlarged) is 30 days after entry of judgment (the date of entry of the order granting summary judgment does not start the clock running). FRAP 4.

The summary judgment for my civil case (retaliation) was granted on 16 NOV

Huh? In your original post, you wrote, "This order was entered on 5 DEC." So I'm not sure what happened when.

The judge allowed the lawyer to withdraw and also said in its order that " time to file a notice of appeal enlarged by 30 days' but did not provide an exact date for the notice of appeal.

That's because the deadline for filing a notice of appeal is set forth in the Federal Rules of Appellate Procedure, along with the local rules of the 4th Circuit (in particular, Rule 31). Stop posting and start reading.

I need to figure this out because I need time to write the brief and research.

The briefing schedule is explained in the local rules.

I answered your other questions already.